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Mentesana v. Lafranco

OPINION FILED MAY 31, 1979.

BINA MENTESANA, PLAINTIFF-APPELLANT,

v.

LEO LAFRANCO, INDIV. AND D/B/A LEO'S E-Z GO SERVICE STATION, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. DANIEL P. COMAN, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Rehearing denied July 9, 1979.

The plaintiff brought this action alleging she suffered personal injuries when she slipped on some ice while crossing filling station premises to reach another street. The trial court granted summary judgment for the defendant ruling that at the time of injury the plaintiff was a licensee and defendant owed her only a duty to refrain from wilful and wanton conduct.

We affirm.

The only evidence before the court when it ruled on the defendant's motion for summary judgment was that contained in the depositions of the plaintiff and the individual defendant, Leo LaFranco (hereinafter defendant). On December 22, 1974, there was a very heavy snowfall in Chicago. The next day it was very cold. There was snow all over. While people removed some snow, it was impossible to clear it all.

The defendant owned a filling station at the northwest corner of Addison and Harlem, facing on Addison. After the snow, the defendant used a snow plow to plow off his property since snow could put him out of business. As he always did, he dumped the snow between two utility poles which were situated on the westernmost part of the property. This area was next to a sloping section which once had been used as a driveway for the gas station. The pictures of the service station indicate that this is the only area of the property where the snow would not block access either to the garage, the shop or the pumps. The mound of snow was between five and six feet high and about that wide at the base. The plaintiff herself stated in her deposition that it was too cold for them to clear it all; even the water was ice.

At about 9:20 a.m. on December 23, 1974, the plaintiff left her home to go to her dress shop which was about three blocks away. She walked along Addison and then because she was in a hurry (her shop opened at 9:30 promptly) she cut across the defendant's property. She usually took this short cut. She was not the only one who did. The defendant stated in his deposition that in December about 20 to 30 people daily trespassed, that is, they just walked across the property and were not there for business purposes. He did not try to stop them.

As noted, the plaintiff customarily cut across the service station premises, apparently leaving the public sidewalk when she reached the utility poles to cut diagonally across for a few feet and then walk in front of the office area and from there diagonally across to the other corner of the gas station. On this particular morning she began to cut across near the mound of snow. She saw that the surface she was walking on had something smooth on it coming from the pile of snow but thought it was water. Instead it was ice and she slipped and fell and injured herself.

The plaintiff brought suit against the defendant alleging that the defendant carelessly and negligently:

"(a) Improperly maintained, managed, operated and controlled said premises including the sidewalk so that as a direct and proximate result thereof, the Plaintiff was injured.

(b) Maintained, controlled, managed and operated said premises including the sidewalk in a dangerous and hazardous condition although they knew or in the exercise of ordinary care should have known of said condition.

(c) Allowed the said premises including the sidewalk to be in a dangerous and defective condition in that they allowed and permitted it to become slippery due to an accumulation of debris thus causing the same to become dangerous and unsafe.

(d) Failed to correct the defective and unsafe condition of said premises.

(e) Failed to warn Plaintiff that the said premises was in a dangerous ...


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